Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 177 



and manpower. This request was denied by the Of- 

 fice of Management and Budget (OMB). Thus, the 

 Corps had to reallocate resources to comply with 

 the court order. According to some States, a few 

 districts place a low value on wetland protection 

 and are inactive by choice. For example, some dis- 

 tricts favor a broad interpretation of nationwide and 

 general permits and are reluctant to assert discre- 

 tionary jurisdiction for individual permits.* 



The case studies revealed two major styles used 

 by Corps districts to deal with objections to 404 per- 

 mit applications. In some districts, the Corps plays 

 an active role as mediator in disputes between appli- 

 cants and resource agencies with wedand-protection 

 concerns. Resource agencies are positive about this 

 approach in districts where it is used. Although the 

 process can be time-consuming, there is general 

 agreement by the agencies that better decisions and 

 better working relationships have resulted. In fact, 

 one Corps regulatory chief commented to OTA that 

 regulatory reform measures that limit the time 

 available for this kind of decisionmaking may result 

 in more permits being denied. Other districts sug- 

 gested these time limits would result in more "rub- 

 ber-stamp" approvals of permit applications. 



In other districts, the Corps plays a more passive 

 role in resolving the objections of resource agencies 

 to permit applications. The applicants are directed 

 to work out the objections of other agencies on their 

 own. The Corps generally will approve the permit 

 when differences are resolved. Two problems were 

 noted in the case studies that can make this ap- 

 proach difficult. First, the applicant may be faced 

 with conflicting recommendations from different 

 agencies. For example, a compensation measure 



•Several States responding to the OTA survey made comments 

 along these lines: "Permitting by the Corps of Engineers under sec- 

 tion 404 has had no importance in the control of wedands in the State 

 of New Hampshire. The State program issues between 1 ,000 and 2,000 

 permits a year and has for the last 8 years. Federal permits in New 

 Hampshire are currendy running at a level of approximately 100 per 

 year. One of the significant reasons for this difference is that the State 

 permit program has no exemptions for any type of applicant (govern- 

 ment agencies, agriculture, etc.), and has issued no general or statewide 

 permits for any size projects. The 404 program administered by the 

 Corps of Engineers lacks publicity in New Hampshire and eliminates 

 half of the projects in New Hampshire by national permits" (New 

 Hampshire). Also, "Freshwater wedands in the coastal zone could 

 be better protected by the Corps of Engineers than by the Coastal 

 Council because of differences in authority, but the Corps uses the 

 general permit to let all freshwater wedands be filled unless the Coastal 

 Council objects very strenuously" (South Carolina). 



to enhance fish resources may conflict with one to 

 enhance wildlife resources. These conflicts generally 

 are resolved by negotiation and compromise be- 

 tween the agencies and project proponents before 

 permits are issued; however, this does litde to avoid 

 frustration for applicants. The second problem is 

 that of finalizing agreements that were made 

 without the presence of the Corps, the major deci- 

 sionmaker. The results of meetings between object- 

 ing agencies and permit applicants are often inter- 

 preted differently, especially if the decisionmaking 

 agency is not present to verify compromises or 

 changed permit conditions. 



The OTA case studies also noted problems that 

 reviewing agencies have had with the Corps. In- 

 adequate information on public notices was noted 

 with respect to at least one district. Incomplete or 

 inaccurate information necessitates requests for ad- 

 ditional information and prolongs the review proc- 

 ess. Poor communication with review agencies, 

 especially on unauthorized activities, was noted as 

 a problem in two studies (3,6). 



Finally, some States see Corps offices as making 

 inadequate efforts to publicize the program. * Other 

 districts are considered to have effective programs 

 for public awareness. A well-publicized program 

 can accomplish several things. First, it can help en- 

 sure that project proponents apply for necessary 

 permits. Publicity on what will or will not be per- 

 mitted under 404 can help ensure that projects sub- 

 mitted for review are designed so that the permit 

 can be obtained readily. Some districts have cited 

 a marked improvement in the quality of permit ap- 

 plications, noting that the majority of applicants 

 no longer request filling coastal wetlands for non- 

 water-dependent uses. In addition, increased 

 publicity leads to better monitoring and enforce- 

 ment, as discussed in more detail below. 



Monitoring and Enforcement 



The Corps has authority under section 404 to 

 monitor and enforce the conditions of its permits. 

 But the 404 program has experienced many prob- 

 lems in monitoring permitted activities and enforc- 

 ing permit conditions. Owing to inadequate fund- 



*"The Corps efforts to inform the public of permit requirements 

 are also limited and haphazard" (Vermont). 



